Question For Our Law Professors

Professors Yoo and Epstein, if you don’t mind a question from the back of the class, I’d like to shift to a different topic and benefit from your expertise.

Word is the DOJ is preparing to take action against Arizona regarding its new immigration law. Specifically, they are contending that the Arizona legislature exceeded its authority by effectively impeding federal responsibility to enforce its immigration laws. From the perspective of a layman, three questions arise:

First, how in the name of Judge Wapner’s gavel can federal enforcement be impeded when there is no federal enforcement taking place in the first instance? It would be like citing me for impeding traffic when I’m the only one on the road, no? If your answer is that it is the fed’s responsibility, not their enforcement, that is being impeded upon, I would counter that it is a responsibility that is being ignored. Am I wrong?

Second question: How can the fed’s responsibility in this matter be impeded or infringed when the new state law merely restates existing federal law?

Lastly, do you gentlemen think that DOJ will suceed in its effort to derail the Arizona law?

I hope you don’t crash as you read this! Here’s my quick take on the Arizona immigration bill (warning: I’ve read the bill, unlike the Attorney General before his congressional hearing). Immigration is an area of complete federal control. States are not allowed to set their own immigration policies. Surprisingly, you will not find this in the Constitution; this power was first inferred by the Supreme Court in the Chinese Exclusion Cases in the late 19th century. After reading the bill, it is hard to see how it violates this principle. The bill looks to me like it simply adopts federal immigration standards as Arizona state law, aside from a few provisions here and there. It seems to allow state officers, in the course of stopping people for independent reasons (like a traffic violation or suspicious criminal activity) to then show their immigration papers. It is hard to say that this interferes with federal immigration standards and so would not be “pre-empted” by federal law, as we like to say in law school.

It seems to me that the real question is whether Arizona’s effort to help enforce federal immigration laws itself would violate federal control over immigration. There are two reasons for this. First, you could say that the federal government has made a decision on immigration policy when it decided how much resources to spend on its enforcement. If the President and Congress only want to spend $5 a day guarding the Arizona border, that is a choice on how much to restrict immigration (in other words, by limiting resources, the President and Congress can enforce a lenient immigration policy even when the law itself is strict). If Arizona doubles that to $10 a day, does that interfere with federal policy itself? Second, what if Arizona officials interpret federal law on immigration differently than Obama? If those officials don’t work for the federal government, Obama cannot order them to change their minds or, ultimately, remove them from office — which is really the only way the President constitutionally controls the executive branch as a whole.

This all leaves me wondering why the better solution is not to auction off the right to enter the country to work (a voucher system applied to visa’s), and then use the proceeds to fund better border control. Visa’s are just a way to ration the numbers of people who enter the country, but the way we do it, they are not distributed with any reason. Why not let the market perform this function rather than the government, which I don’t trust to make the right allocation (for the same reason, I think education is better funded through vouchers rather than a public monopoly in schools — same goes for health care too). In fact, those who enter the country legally would have an interest in making sure the border was controlled — if it is not, then the property value of their visas will drop.

John, there’s part of me that immediately sees the logic in your suggestion. As you say, rationing is already in place. We both agree, I’m sure, that the price mechanism is the best way we know efficiently to allocate scarce resources. But the downside is that the scheme, if implemented, immediately does away with one of the core myths of the American Dream: the idea that an immigrant can land penniless on Ellis Island (or the modern equivalent) and through hard work and innovation become a millionaire. How often does that happen in reality? Not that often, to be sure. But the idea that this is possible is essential to the idea of America, is it not? The scheme you’re proposing would do away with poor immigrants. Overall, I think it’s unwise for a developed country to accept a huge number of poor immigrants; there’s tons of evidence that the immigrants who do well in the West are the ones who were already doing well in their countries of origin. But having an official policy that amounts to saying, “We’ll only take you if you’re rich already” doesn’t really leave a lot of room for the tired, the poor, the huddled masses.

America has an important mythology, and to a large extent an impressive real history, of welcoming tired, poor and huddled masses. To some extent we already do use a price mechanism to govern immigration — very rich friendly foreign people don’t generally have a problem getting visas to come to the US — but I can’t quite bear the idea of using nothing but a price mechanism, not least because had this been the scheme in place when my grandparents immigrated, I wouldn’t be an American.

John: If immigrants were to have a property right in their visas, wouldn’t they have to be allowed to resell them? (Of course they would have to leave the country when they did so.) In this case, would a market develop in “used” visas? How could such a market be facilitated?

Claire: Given the value of remittances to the home-country families of immigrants, isn’t it likely that even poor families would pool their resources to send their most productive member to the US? The most productive member would be expected to earn and remit the most money to his or her “investors” back home. Few families would invest their funds so their laziest member could come here and collect welfare. Even poor people can count, and over time the price of visas would likely settle at the net present value of their anticipated remittance flows, unless the supply were so restricted that all of them got snapped up by wealthy aspirants.

I’m sure the real economists on the site could provide a better analysis than I. (Hint, hint.)

Professor Yoo, thanks very much for clarifying the issues regarding a federal challenge to Arizona’s new immigration law. May I infer from your answer that a DOJ suit against the state would not have a terribly high chance of success? Given the fact that Arizona is basically restating the federal law, I can’t imagine the feds would be successful in their challenge. Then again, many surprises have come from the bench.

A state can do anything that furthers the Federal law as long as in so doing it doesn’t undercut it (dim memories from Con Law class). If the feds regulate something, the state can extend the regulation, it cannot relax it. One good example is CARB (Cal Air Resources Board) being able to apply more restrictive local air pollution standards than are in CAA as Amended (1991).

The state cannot interfere in the fed enforcement process. DoJ, it seems to me, would have to show that Arizona is interfering with the US border control process- and if they argued that this is true, that would remove the state obligation to assist in other situations where the FBI asked for local help. I predict that the DoJ effort will be pushed far enough to generate headlines as long as it appears to be politically beneficial with the lefty base, and will be allowed to dribble away and eventually dropped no later than after November.

I’m moved by Claire’s appeal to the American ideal. But her family’s experience and those of many others came during a period of open immigration when the United States wanted to expand its population and labor force. Each immigrant was a net benefit to the country. But the marginal cost, as it were, of each immigrant is higher now, because of welfare programs, even though they each bring potential value to our nation. So the nation has decided to ration entry. If it does that, I would rather trust a market or even a lottery than ICE (as the INS is now known) or Congress to decide which nations should supply the newest Americans. Governments are notoriously poor at making allocation decisions (hence the Soviet failure to produce consumer goods anyone wanted). If people were poor, but had great energy and ambition, perhaps they could pool money from their families, as Daniel Frank suggests, or borrow (what is a student loan, after all, but a mortgage against someone’s future success?). I don’t like a lottery (though a secondary market is interesting) because the U.S., I think, should get the value of the initial property right.

Dave: I think it will all be a matter of how Arizona enforces its law. I think it will be difficult for a court to say that the law on its face violates the federal government’s control over immigration. If Arizona were to enforce its law primarily by asking people who are arrested or stopped for other reasons for proof of their immigration status, and then turns over illegal immigrants to the federal authorities for deportation, then it is hard to see how the state is interfering with federal policy. Suppose Obama was an open borders administration. Even if Arizona did this, he could have ICE just release everyone handed over by Arizona for deportation proceedings.

John Yoo: Dave: I think it will all be a matter of how Arizona enforces its law. I think it will be difficult for a court to say that the law on its face violates the federal government’s control over immigration.

Hence the likely push for COMPREHENSIVE (there’s that word again) federal immigration REFORM (that one, too). I go back and forth on the right policy response(s) to illegal immigration. The one thing I know I want least? A cheap, mobile pool of labor forming a permanent underclass without real citizenship in any one country. Yet I worry that big government and big business alike are incentivized to want exactly that.

John, actually, my grandparents came to the US in 1941, not a period of open immigration for Jews, to say the least. I’m certainly persuaded by the idea that goods in short supply are best allocated by markets. (Indeed, the United States’ failure to admit the hundreds of thousands of other Jews who were desperately seeking refuge from the Nazis tells you exactly how good the government is at making that kind of decision.) But obviously many talented and industrious potential immigrants won’t have had the kinds of economic opportunities that would allow them to afford visas sold at auction, even if their entire families joined them in pooling resources. A lottery is random (if fair), but why settle for that? Why not grant some proportion of visas based upon the candidate’s potential to make an outstanding contribution to American life? If colleges are able to make reasonably accurate predictions about which applicants are apt to be good students, it should be be possible to predict which applicants will make good citizens, using similar criteria. We already do this, of course. I think we should continue. To take the decisions out of the government’s hands, think we might endorse schemes by which corporations sponsor these poor but talented immigrants, possibly by lending them the money for the visa with the understanding that they will in turn work for them for a certain number of years. Of course, this would be a bit legally tricky; indentured servitude is not quite the idea we want to promote.

I embrace immigrants, and I enjoy the variety and diversity from all around the world. It’s amazing to see little Chinatowns and Koreatowns and Mexican markets all over the country.

That said, in generations past we always expected immigrants ultimately to integrate and assimilate, even if they maintained some of their heritage. And though we’ve even assimilated some of theirs (think St. Patrick’s Day), there is a unique American culture that is worth preserving and makes this country what it is.

In the past, fears of Balkanization during waves of high immigration led to periods of relatively restricted immigration that helped immigrants assimilate. Now, immigration levels are 8 times historical average levels, and there seems to be no political possibility of reducing them. Simultaneously, our extreme multiculturalism (one that downplays our own culture) gives immigrants less incentive to assimilate. Certain groups speak openly of “retaking” parts of the country. The threat of Balkanization is more real than it has ever been in the past. The sheer numbers of immigrants in itself poses a problem to our country. That is why sites like Numbers USA advocate not only for stopping illegal immigration but reducing legal immigration to more historical levels.

Claire Berlinski: “But having an official policy that amounts to saying, ‘We’ll only take you if you’re rich already’ doesn’t really leave a lot of room for the tired, the poor, the huddled masses.” · May 28 at 7:40pm

Edited on May 28 at 08:10 pm

I agree with most points here, but even during the Ellis Island days, there were limits on immigrants based on their origin.&nbsp; Were they unfair at times?&nbsp; Sure.&nbsp; But at least we had limits.&nbsp; Open borders and the Illegal Immigrant Invasion means we are losing our country.&nbsp; Reform is a three legged stool: Close the borders.&nbsp; Chase, prosecute, deport the&nbsp;Illegal Immigrant Invader.&nbsp; Prosecute those who would house and employ the Illegal Immigrant Invader.

Everyone has a right to their opinion on this matter.&nbsp; I earned mine by working&nbsp;as a&nbsp;US Army Soldier,&nbsp;welding railroad iron into anti-vehicle barriers on the Arizona-Mexico Border (near Sells)&nbsp;during 2007-2008.&nbsp; (Along with sweating out the desert heat, dodging the scorpions, gila monsters, illegals, and the occasional stray round fired at us from the Mexican drug cartels or the Mexican Federal Army.)